ACTION TO AMEND
IDS CURRENT SERVICE
DEFERRED COMPENSATION PLAN
RESOLVED, that pursuant to Section 5(f) of the IDS Current Deferred
Compensation Plan (the "Plan"), the Plan is hereby amended as follows:
1. Section 8 is hereby added to the Plan to read as follows:
8. Major Transaction
-----------------
(a) This Section (8) shall apply in the event of a Major
Transaction (as defined below). A Major Transaction shall
mean a transaction described in either (1) or (2) below:
(1) The consummation of a reorganization, merger or
consolidation, in each case, if, following such
reorganization, merger or consolidation, more than 50% but
not more than 60% of, respectively, the then outstanding
shares of common stock of the corporation resulting from
such reorganization, merger or consolidation (or any parent
thereof) and the combined voting power of the then
outstanding voting securities of such corporation (or any
parent thereof) entitled to vote generally in the election
of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Shares and Outstanding
Company Voting Securities immediately prior to such
reorganization, merger or consolidation, in substantially
the same proportions as their ownership immediately prior to
such reorganization, merger or consolidation of such
Outstanding Company Common Shares and Outstanding Company
Voting Shares, as the case may be, but only if:
(A) no Person (excluding the Company, any employee benefit
plan (or related trust) of the Company, a Subsidiary or such
corporation resulting from such reorganization, merger or
consolidation or any parent or a subsidiary thereof, and any
Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, directly or
indirectly, 25% or more of the Outstanding Company Common
Shares or Outstanding Company Voting Securities, as the case
may be) beneficially owns, directly or indirectly, 25% or
more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation (or any parent thereof) or the
combined voting power of the then outstanding voting
securities of such corporation (or any parent thereof)
entitled to vote generally in the election of directors; and
(B) at least a majority of the members of the board of
directors of the corporation resulting from such
reorganization, merger or consolidation (or any parent
thereof) were members of the Incumbent Board at the time of
the execution of the initial agreement or action of the
Board providing for such reorganization, merger or
consolidation.
(2) The consummation of the sale, lease, exchange or other
disposition of all or substantially all of the assets of the
Company to a corporation with respect to which following
such sale, lease, exchange or other disposition more
than 50% but not more than 60% of, respectively, the then
outstanding shares of common stock of such corporation (or
any parent thereof) and the combined voting power of the
then outstanding voting securities of such corporation (or
any parent thereof) entitled to vote generally in the
election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Shares and
Outstanding Company Voting Securities immediately prior to
such sale, lease, exchange or other disposition in
substantially the same proportions as their ownership
immediately prior to such sale, lease, exchange or other
disposition of such Outstanding Company Common Shares and
Outstanding Company Voting Shares, as the case may be, but
only if:
2
(A) no Person (excluding the Company and any employee
benefit plan (or related trust) of the Company or a
Subsidiary of such corporation or a subsidiary thereof and
any Person beneficially owning, immediately prior to such
sale, lease, exchange or other disposition, directly or
indirectly, 25% or more of the Outstanding Company Common
Shares or Outstanding Company Voting Securities, as the case
may be) beneficially owns, directly or indirectly, 25% or
more of, respectively, the then outstanding shares of common
stock of such corporation (or any parent thereof) and the
combined voting power of the then outstanding voting
securities of such corporation (or any parent thereof)
entitled to vote generally in the election of directors; and
(B) at least a majority of the members of the board of
directors of such corporation (or any parent thereof) were
members of the Incumbent Board at the time of the execution
of the initial agreement or action of the Board providing
for such sale, lease, exchange or other disposition of
assets of the Company.
(b) If all or any portion of the payments or benefits to which
the Participant will be entitled under the Program, either
alone or together with other payments or benefits which the
Participant receives or is entitled to receive directly or
indirectly from the Company or any of its subsidiaries or
any other person or entity that would be treated as a payor
of parachute payments as hereinafter defined, under any
other plan, agreement or arrangement, would constitute a
"parachute payment" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code")
or any successor provision thereto and regulations or other
guidance thereunder (except that "2.95" shall be used
instead of "3" under Section 280G(b)(2)(A)(ii) of the Code
or any successor provision thereto), such payment or
benefits provided to the Participant under this Plan, and
any other payments or benefits which the Participant
receives or is entitled to receive directly or indirectly
from the Company or any of its subsidiaries or any other
3
person or entity that would be treated as a payor of
parachute payments as hereinafter defined, under any other
plan, agreement or arrangement which would constitute a
parachute payment, shall be reduced (but not below zero) as
described below to the extent necessary so that no portion
thereof would constitute such a parachute payment as
previously defined (except that "2.95" shall be used instead
of "3" under Section 280G(b)(2)(A)(ii) of the Code or any
successor provision thereto). Whether payments or benefits
to the Participant would constitute a "parachute payment",
whether such payments or benefits are to be reduced pursuant
to the first sentence of this paragraph, and the extent to
which they are to be so reduced, will be determined by the
firm serving, immediately prior to the Major Transaction, as
the Company's independent auditors, or if that firm refuses
to serve, by another qualified firm, whether or not serving
as independent auditors, designated by the Administration
Committee (the "Firm"). The Firm will be paid reasonable
compensation by the Company for such services. If the Firm
concludes that its determination is inconsistent with a
final determination of a court or the Internal Revenue
Service, the Firm shall, based on such final determination,
redetermine whether the amount payable to the Participant
should have been reduced and, if applicable, the amount of
any such reduction. If the Firm determines that a lesser
payment should have been made to the Participant, then an
amount equal to the amount of the excess of the earlier
payment over the redetermined amount (the "Excess Amount")
will be deemed for all purposes to be a loan to the
Participant made on the date of the Participant's receipt of
such Excess Amount, which the Participant will have an
obligation to repay to the Company on the fifth business day
after demand, together with interest on such amount at the
lowest applicable Federal rate (as defined in Section
1274(d) of the Code or any successor provision thereto),
compounded semi-annually (the "Section 1274 Rate") from the
date of the Participant's receipt of such Excess Amount
until the date of such repayment (or such lesser rate
(including zero) as may be designated by the Firm such that
the Excess Amount and such interest will not be treated as a
parachute payment as previously defined). If
4
the Firm determines that a greater payment should have been
made to the Participant, within five business days of such
determination, the Company will pay to the Participant the
amount of the deficiency, together with interest thereon
from the date such amount should have been paid to the date
of such payment, at the Section 1274 Rate (or such lesser
rate (including zero) as may be designated by the Firm such
that the amount of such deficiency and such interest will
not be treated as a parachute payment as previously
defined). If a reduction is to be made pursuant to this
paragraph, the Firm will have the right to determine which
payments and benefits will be reduced, either those under
this Plan alone or such other payments or benefits which the
Participant receives or is entitled to receive directly or
indirectly from the Company or any of its subsidiaries or
any other person or entity that would be treated as a payor
of parachute payments as previously defined, under any other
plan, agreement or arrangement.
2. Section 9 is added to the Plan as follows:
9. Change in Control Payments
--------------------------
(a) This Section 9 shall apply in the event in a Change in
Control, as defined in paragraph 7 above.
(b) In the event that any payment or benefit received or to
be received by a Participant hereunder in connection with a
Change in Control or termination of such Participant's
employment (such payments and benefits, excluding Gross-Up
Payment (as hereinafter defined), being hereinafter referred
to collectively as the "Payments"), will be subject to the
excise tax (the "Excise Tax") referred to in Section 4999 of
the Code, then (i) in the case of a Participant who is
classified in Band 70 (or its equivalent) or above
immediately prior to such Change in Control (a "Tier 1
Employee"), the Company shall pay to such Tier 1 Employee,
within five days after receipt by such Tier 1 Employee of
the written statement referred to in paragraph (d) below, an
additional amount (the "Gross-Up
5
Payment") such that the net amount retained by such Tier 1
Employee, after deduction of any Excise Tax on the Payments
and any federal, state and local income and employment taxes
and Excise Tax upon the Gross-Up Payment, shall be equal to
the Payments, and (ii) in the case of a Tier 1 Employee (in
the event clause (i) above does not apply) and in the case
of any other Participant, the Payments shall be reduced to
the extent necessary so that no portion of the Payments is
subject to the Excise Tax but only if (A) the net amount of
all Total Payments (as hereinafter defined), as so reduced
(and after subtracting the net amount of federal, state and
local income and employment taxes on such reduced Total
Payments), is greater than or equal to (B) the net amount of
such Total Payments without any such reduction (but after
subtracting the net amount of federal, state and local
income and employment taxes on such Total Payments and the
amount of Excise Tax to which a Participant would be subject
in respect of such unreduced Total Payments); PROVIDED,
HOWEVER, that the Participant may elect in writing to have
other components of his or her Total Payments reduced prior
to any reduction in the Payments hereunder.
(c) For purposes of determining whether the Payments will be
subject to the Excise Tax, the amount of such Excise Tax and
whether any Payments are to be reduced hereunder: (i) all
payments and benefits received or to be received by a
Participant in connection with such Change in Control or the
termination of such Participant's employment, whether
pursuant to the terms of this Plan or any other plan,
arrangement or agreement with the Company, any Person (as
such term is defined in definition of a Change in Control)
whose actions result in such Change in Control or any Person
affiliated with the Company or such Person (all such
payments and benefits, excluding the Gross-Up Payment and
any similar gross-up payment to which a Tier 1 Employee may
be entitled under any such other plan, arrangement or
agreement, being hereinafter referred to as the "Total
Payments"), shall be treated as "parachute payments" (within
the meaning of section 280G(b)(2) of the Code) unless, in
the opinion of the account-
6
ing firm which was, immediately prior to the Change in Control,
the Company's independent auditor, or if that firm refuses to
serve, by another qualified firm, whether or not serving as
independent auditors, designated by the Administration Committee
(the "Auditor"), such payments or benefits (in whole or in part)
do not constitute parachute payments, including by reason of
section 280G(b)(2)(A) or section 280G(b)(4)(A) of the Code; (ii)
no portion of the Total Payments the receipt or enjoyment of
which the Participant shall have waived at such time and in such
manner as not to constitute a "payment" within the meaning of
section 280G(b) of the Code shall be taken into account; (iii)
all "excess parachute payments" within the meaning of section
280G(b)(l) of the Code shall be treated as subject to the Excise
Tax unless, in the opinion of the Auditor, such excess parachute
payments (in whole or in part) represent reasonable compensation
for services actually rendered (within the meaning of section
280G(b)(4)(B) of the Code) in excess of the Base Amount (within
the meaning of section 280G(b)(3) of the Code) allocable to such
reasonable compensation, or are otherwise not subject to the
Excise Tax; and (iv) the value of any noncash benefits or any
deferred payment or benefit shall be determined by the Auditor in
accordance with the principles of sections 280G(d)(3) and (4) of
the Code and regulations or other guidance thereunder. For
purposes of determining the amount of the Gross-Up Payment in
respect of a Tier 1 Employee and whether any Payments in respect
of a Participant (other than a Tier 1 Employee) shall be reduced,
the Participant shall be deemed to pay federal income tax at the
highest marginal rate of federal income taxation (and state and
local income taxes at the highest marginal rate of taxation in
the state and locality of such Participant's residence, net of
the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes) in the
calendar year in which the Gross-Up Payment is to be made (in the
case of a Tier 1 Employee) or in which the Payments are made (in
the case of a participant other than a Tier 1 Employee). The Firm
will be paid reasonable compensation by the Company for its
services.
7
(d) In the event that the Excise Tax is finally determined
to be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, then an amount equal to
the amount of the excess of the earlier payment over the
redetermined amount (the "Excess Amount") will be deemed for
all purposes to be a loan to the Tier 1 Employee made on the
date of the Tier 1 Employee's receipt of such Excess Amount,
which the Tier 1 Employee will have an obligation to repay
to the Company on the fifth business day after demand,
together with interest on such amount at the lowest
applicable Federal rate (as defined in Section 1274(d) of
the Code or any successor provision thereto), compounded
semi-annually (the "Section 1274 Rate") from the date of the
Tier 1 Employee's receipt of such Excess Amount until the
date of such repayment (or such lesser rate (including zero)
as may be designated by the Auditor such that the Excess
Amount and such interest will not be treated as a parachute
payment as previously defined). In the event that the Excise
Tax is finally determined to exceed the amount taken into
account hereunder in calculating the Gross-Up Payment
(including by reason of any payment the existence or amount
of which cannot be determined at the time of the Gross-Up
Payment), within five business days of such determination,
the Company will pay to the Tier 1 Employee an additional
amount, together with interest thereon from the date such
additional amount should have been paid to the date of such
payment, at the Section 1274 Rate (or such lesser rate
(including zero) as may be designated by the Auditor such
that the amount of such deficiency and such interest will
not be treated as a parachute payment as previously
defined). The Tier 1 Employee and the Company shall each
reasonably cooperate with the other in connection with any
administrative or judicial proceedings concerning the amount
of any Gross-Up Payment.
(e) As soon as practicable following a Change in Control,
the Company shall provide to each Tier 1 Employee and to
each other Participant with respect to whom it is proposed
that Payments be reduced, a written statement setting forth
the manner in which the Total Payments in respect of such
Tier 1
8
Employee or other Participant were calculated and the basis
for such calculations, including, without limitation, any
opinions or other advice the Company has received from the
Firm or other advisors or consultants (and any such opinions
or advice which are in writing shall be attached to the
statement).
9
IDS CURRENT SERVICE
DEFERRED COMPENSATION PLAN
RESOLVED, that pursuant to Section 5(f) of the IDS Current Deferred
Compensation Plan (the "Plan"), the Plan is hereby amended as follows:
1. Section 8 is hereby added to the Plan to read as follows:
8. Major Transaction
-----------------
(a) This Section (8) shall apply in the event of a Major
Transaction (as defined below). A Major Transaction shall
mean a transaction described in either (1) or (2) below:
(1) The consummation of a reorganization, merger or
consolidation, in each case, if, following such
reorganization, merger or consolidation, more than 50% but
not more than 60% of, respectively, the then outstanding
shares of common stock of the corporation resulting from
such reorganization, merger or consolidation (or any parent
thereof) and the combined voting power of the then
outstanding voting securities of such corporation (or any
parent thereof) entitled to vote generally in the election
of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Shares and Outstanding
Company Voting Securities immediately prior to such
reorganization, merger or consolidation, in substantially
the same proportions as their ownership immediately prior to
such reorganization, merger or consolidation of such
Outstanding Company Common Shares and Outstanding Company
Voting Shares, as the case may be, but only if:
(A) no Person (excluding the Company, any employee benefit
plan (or related trust) of the Company, a Subsidiary or such
corporation resulting from such reorganization, merger or
consolidation or any parent or a subsidiary thereof, and any
Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, directly or
indirectly, 25% or more of the Outstanding Company Common
Shares or Outstanding Company Voting Securities, as the case
may be) beneficially owns, directly or indirectly, 25% or
more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation (or any parent thereof) or the
combined voting power of the then outstanding voting
securities of such corporation (or any parent thereof)
entitled to vote generally in the election of directors; and
(B) at least a majority of the members of the board of
directors of the corporation resulting from such
reorganization, merger or consolidation (or any parent
thereof) were members of the Incumbent Board at the time of
the execution of the initial agreement or action of the
Board providing for such reorganization, merger or
consolidation.
(2) The consummation of the sale, lease, exchange or other
disposition of all or substantially all of the assets of the
Company to a corporation with respect to which following
such sale, lease, exchange or other disposition more
than 50% but not more than 60% of, respectively, the then
outstanding shares of common stock of such corporation (or
any parent thereof) and the combined voting power of the
then outstanding voting securities of such corporation (or
any parent thereof) entitled to vote generally in the
election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Shares and
Outstanding Company Voting Securities immediately prior to
such sale, lease, exchange or other disposition in
substantially the same proportions as their ownership
immediately prior to such sale, lease, exchange or other
disposition of such Outstanding Company Common Shares and
Outstanding Company Voting Shares, as the case may be, but
only if:
2
(A) no Person (excluding the Company and any employee
benefit plan (or related trust) of the Company or a
Subsidiary of such corporation or a subsidiary thereof and
any Person beneficially owning, immediately prior to such
sale, lease, exchange or other disposition, directly or
indirectly, 25% or more of the Outstanding Company Common
Shares or Outstanding Company Voting Securities, as the case
may be) beneficially owns, directly or indirectly, 25% or
more of, respectively, the then outstanding shares of common
stock of such corporation (or any parent thereof) and the
combined voting power of the then outstanding voting
securities of such corporation (or any parent thereof)
entitled to vote generally in the election of directors; and
(B) at least a majority of the members of the board of
directors of such corporation (or any parent thereof) were
members of the Incumbent Board at the time of the execution
of the initial agreement or action of the Board providing
for such sale, lease, exchange or other disposition of
assets of the Company.
(b) If all or any portion of the payments or benefits to which
the Participant will be entitled under the Program, either
alone or together with other payments or benefits which the
Participant receives or is entitled to receive directly or
indirectly from the Company or any of its subsidiaries or
any other person or entity that would be treated as a payor
of parachute payments as hereinafter defined, under any
other plan, agreement or arrangement, would constitute a
"parachute payment" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code")
or any successor provision thereto and regulations or other
guidance thereunder (except that "2.95" shall be used
instead of "3" under Section 280G(b)(2)(A)(ii) of the Code
or any successor provision thereto), such payment or
benefits provided to the Participant under this Plan, and
any other payments or benefits which the Participant
receives or is entitled to receive directly or indirectly
from the Company or any of its subsidiaries or any other
3
person or entity that would be treated as a payor of
parachute payments as hereinafter defined, under any other
plan, agreement or arrangement which would constitute a
parachute payment, shall be reduced (but not below zero) as
described below to the extent necessary so that no portion
thereof would constitute such a parachute payment as
previously defined (except that "2.95" shall be used instead
of "3" under Section 280G(b)(2)(A)(ii) of the Code or any
successor provision thereto). Whether payments or benefits
to the Participant would constitute a "parachute payment",
whether such payments or benefits are to be reduced pursuant
to the first sentence of this paragraph, and the extent to
which they are to be so reduced, will be determined by the
firm serving, immediately prior to the Major Transaction, as
the Company's independent auditors, or if that firm refuses
to serve, by another qualified firm, whether or not serving
as independent auditors, designated by the Administration
Committee (the "Firm"). The Firm will be paid reasonable
compensation by the Company for such services. If the Firm
concludes that its determination is inconsistent with a
final determination of a court or the Internal Revenue
Service, the Firm shall, based on such final determination,
redetermine whether the amount payable to the Participant
should have been reduced and, if applicable, the amount of
any such reduction. If the Firm determines that a lesser
payment should have been made to the Participant, then an
amount equal to the amount of the excess of the earlier
payment over the redetermined amount (the "Excess Amount")
will be deemed for all purposes to be a loan to the
Participant made on the date of the Participant's receipt of
such Excess Amount, which the Participant will have an
obligation to repay to the Company on the fifth business day
after demand, together with interest on such amount at the
lowest applicable Federal rate (as defined in Section
1274(d) of the Code or any successor provision thereto),
compounded semi-annually (the "Section 1274 Rate") from the
date of the Participant's receipt of such Excess Amount
until the date of such repayment (or such lesser rate
(including zero) as may be designated by the Firm such that
the Excess Amount and such interest will not be treated as a
parachute payment as previously defined). If
4
the Firm determines that a greater payment should have been
made to the Participant, within five business days of such
determination, the Company will pay to the Participant the
amount of the deficiency, together with interest thereon
from the date such amount should have been paid to the date
of such payment, at the Section 1274 Rate (or such lesser
rate (including zero) as may be designated by the Firm such
that the amount of such deficiency and such interest will
not be treated as a parachute payment as previously
defined). If a reduction is to be made pursuant to this
paragraph, the Firm will have the right to determine which
payments and benefits will be reduced, either those under
this Plan alone or such other payments or benefits which the
Participant receives or is entitled to receive directly or
indirectly from the Company or any of its subsidiaries or
any other person or entity that would be treated as a payor
of parachute payments as previously defined, under any other
plan, agreement or arrangement.
2. Section 9 is added to the Plan as follows:
9. Change in Control Payments
--------------------------
(a) This Section 9 shall apply in the event in a Change in
Control, as defined in paragraph 7 above.
(b) In the event that any payment or benefit received or to
be received by a Participant hereunder in connection with a
Change in Control or termination of such Participant's
employment (such payments and benefits, excluding Gross-Up
Payment (as hereinafter defined), being hereinafter referred
to collectively as the "Payments"), will be subject to the
excise tax (the "Excise Tax") referred to in Section 4999 of
the Code, then (i) in the case of a Participant who is
classified in Band 70 (or its equivalent) or above
immediately prior to such Change in Control (a "Tier 1
Employee"), the Company shall pay to such Tier 1 Employee,
within five days after receipt by such Tier 1 Employee of
the written statement referred to in paragraph (d) below, an
additional amount (the "Gross-Up
5
Payment") such that the net amount retained by such Tier 1
Employee, after deduction of any Excise Tax on the Payments
and any federal, state and local income and employment taxes
and Excise Tax upon the Gross-Up Payment, shall be equal to
the Payments, and (ii) in the case of a Tier 1 Employee (in
the event clause (i) above does not apply) and in the case
of any other Participant, the Payments shall be reduced to
the extent necessary so that no portion of the Payments is
subject to the Excise Tax but only if (A) the net amount of
all Total Payments (as hereinafter defined), as so reduced
(and after subtracting the net amount of federal, state and
local income and employment taxes on such reduced Total
Payments), is greater than or equal to (B) the net amount of
such Total Payments without any such reduction (but after
subtracting the net amount of federal, state and local
income and employment taxes on such Total Payments and the
amount of Excise Tax to which a Participant would be subject
in respect of such unreduced Total Payments); PROVIDED,
HOWEVER, that the Participant may elect in writing to have
other components of his or her Total Payments reduced prior
to any reduction in the Payments hereunder.
(c) For purposes of determining whether the Payments will be
subject to the Excise Tax, the amount of such Excise Tax and
whether any Payments are to be reduced hereunder: (i) all
payments and benefits received or to be received by a
Participant in connection with such Change in Control or the
termination of such Participant's employment, whether
pursuant to the terms of this Plan or any other plan,
arrangement or agreement with the Company, any Person (as
such term is defined in definition of a Change in Control)
whose actions result in such Change in Control or any Person
affiliated with the Company or such Person (all such
payments and benefits, excluding the Gross-Up Payment and
any similar gross-up payment to which a Tier 1 Employee may
be entitled under any such other plan, arrangement or
agreement, being hereinafter referred to as the "Total
Payments"), shall be treated as "parachute payments" (within
the meaning of section 280G(b)(2) of the Code) unless, in
the opinion of the account-
6
ing firm which was, immediately prior to the Change in Control,
the Company's independent auditor, or if that firm refuses to
serve, by another qualified firm, whether or not serving as
independent auditors, designated by the Administration Committee
(the "Auditor"), such payments or benefits (in whole or in part)
do not constitute parachute payments, including by reason of
section 280G(b)(2)(A) or section 280G(b)(4)(A) of the Code; (ii)
no portion of the Total Payments the receipt or enjoyment of
which the Participant shall have waived at such time and in such
manner as not to constitute a "payment" within the meaning of
section 280G(b) of the Code shall be taken into account; (iii)
all "excess parachute payments" within the meaning of section
280G(b)(l) of the Code shall be treated as subject to the Excise
Tax unless, in the opinion of the Auditor, such excess parachute
payments (in whole or in part) represent reasonable compensation
for services actually rendered (within the meaning of section
280G(b)(4)(B) of the Code) in excess of the Base Amount (within
the meaning of section 280G(b)(3) of the Code) allocable to such
reasonable compensation, or are otherwise not subject to the
Excise Tax; and (iv) the value of any noncash benefits or any
deferred payment or benefit shall be determined by the Auditor in
accordance with the principles of sections 280G(d)(3) and (4) of
the Code and regulations or other guidance thereunder. For
purposes of determining the amount of the Gross-Up Payment in
respect of a Tier 1 Employee and whether any Payments in respect
of a Participant (other than a Tier 1 Employee) shall be reduced,
the Participant shall be deemed to pay federal income tax at the
highest marginal rate of federal income taxation (and state and
local income taxes at the highest marginal rate of taxation in
the state and locality of such Participant's residence, net of
the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes) in the
calendar year in which the Gross-Up Payment is to be made (in the
case of a Tier 1 Employee) or in which the Payments are made (in
the case of a participant other than a Tier 1 Employee). The Firm
will be paid reasonable compensation by the Company for its
services.
7
(d) In the event that the Excise Tax is finally determined
to be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, then an amount equal to
the amount of the excess of the earlier payment over the
redetermined amount (the "Excess Amount") will be deemed for
all purposes to be a loan to the Tier 1 Employee made on the
date of the Tier 1 Employee's receipt of such Excess Amount,
which the Tier 1 Employee will have an obligation to repay
to the Company on the fifth business day after demand,
together with interest on such amount at the lowest
applicable Federal rate (as defined in Section 1274(d) of
the Code or any successor provision thereto), compounded
semi-annually (the "Section 1274 Rate") from the date of the
Tier 1 Employee's receipt of such Excess Amount until the
date of such repayment (or such lesser rate (including zero)
as may be designated by the Auditor such that the Excess
Amount and such interest will not be treated as a parachute
payment as previously defined). In the event that the Excise
Tax is finally determined to exceed the amount taken into
account hereunder in calculating the Gross-Up Payment
(including by reason of any payment the existence or amount
of which cannot be determined at the time of the Gross-Up
Payment), within five business days of such determination,
the Company will pay to the Tier 1 Employee an additional
amount, together with interest thereon from the date such
additional amount should have been paid to the date of such
payment, at the Section 1274 Rate (or such lesser rate
(including zero) as may be designated by the Auditor such
that the amount of such deficiency and such interest will
not be treated as a parachute payment as previously
defined). The Tier 1 Employee and the Company shall each
reasonably cooperate with the other in connection with any
administrative or judicial proceedings concerning the amount
of any Gross-Up Payment.
(e) As soon as practicable following a Change in Control,
the Company shall provide to each Tier 1 Employee and to
each other Participant with respect to whom it is proposed
that Payments be reduced, a written statement setting forth
the manner in which the Total Payments in respect of such
Tier 1
8
Employee or other Participant were calculated and the basis
for such calculations, including, without limitation, any
opinions or other advice the Company has received from the
Firm or other advisors or consultants (and any such opinions
or advice which are in writing shall be attached to the
statement).
9